Summary: Mr X complained the Council delayed completing the annual review of his son, Mr G’s Education, Health and Care (EHC) Plan and did not complete the review in time for Mr G’s transition to post 19 education. He said the Council delayed agreeing to an alternative use for direct payments and failed to properly respond to his complaints about the matters. The Council delayed in completing the annual review and there were faults in its complaint handling. The Council will apologise to Mr G and Mr X and make a symbolic payment to remedy the injustice they experienced.

The complaint

1. Mr X complained the Council delayed completing the annual review of his son, Mr G’s Education, Health and Care (EHC) Plan and did not complete the review in time for Mr G’s transition to post 19 education, and delayed agreeing to an alternative use for direct payments for Mr G until Mr X complained. Mr X also complained the Council failed to properly respond to his complaints about the matters.
2. Mr X said this caused him and Mr G frustration, time and trouble, delayed his appeal rights and prevented Mr G having an appropriate transition to post 19 education. Mr X wanted the Council to issue Mr G’s final amended EHC Plan and to not delay approving alternative uses for direct payments in the future.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I read the documents Mr X provided and discussed the complaint with him on the phone.
9. I considered the documents the Council sent in response to my enquiries.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Education, Health and Care Plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
12. The EHC Plan is set out in sections which include sections on the child or young person’s special educational needs (SEN) and social care needs related to their SEN. It includes sections on the special educational provision they needed and any social care provision reasonably required. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).

Personal budget

13. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

Reviewing EHC Plans

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
17. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. The Council should issue the amended EHC Plan within a further eight weeks.

Appeal rights

18. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
19. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; and
• an amendment to these elements of an EHC Plan.

Council’s complaint policy

20. The Council’s complaint policy states it will acknowledge complaints within three working days, and respond to them in 20 working days.

What happened

Background information

21. Mr G is a young adult who lives at home with his parents, Mr and Mrs X and his sibling B. Mr G has neuro-differences that means he needs additional support in education and social care. Mr G had an Education, Health and Care (EHC) Plan that set out the special educational provision he needed to meet his special educational needs and the social care he needed. The EHC Plan in force at the time of the events in this investigation said Mr G should attend School A. School A accepted students up to the age of 19.
22. The EHC Plan also set out that Mr G needed social care support for five hours a week outreach support during term time and for ten hours each week during school holidays. The outreach support was to provide social opportunities for Mr G to develop independence skills and reduce isolation. The Council provided direct payments of a personal budget for social care that Mr and Mrs X managed on Mr G’s behalf.
23. Mrs X signed a direct payment agreement which included that she would contact the Council in advance if they wanted to use the direct payments for something that was not specified in the support plan.
24. The Council implemented a communication plan with Mr and Mrs X around their communications with the Council. The communication plan said that Mr and Mrs X must contact Officer 1 (a SEN officer) about concerns or complaints about EHC Plan matters and Officer 2 (an adult social care {ASC} officer) about social care matters for Mr G. It said officers would respond immediately to urgent matters and within 20 working days for all other matters. It stated it would not accept a complaint if it had not been discussed with the relevant officer first.

Current events

25. Mr G’s EHC plan was due for review in September 2023. School A held an annual review meeting on 21 September 2023. The review meeting recommended that Mr G’s Plan should be maintained and that Mr G and Mr and Mrs X wanted Mr G to attend college B from September 2024 as by then he would be over the age of 19. School A sent the review record to the Council.
26. Mr X complained to the Council at the end of October that it had not reviewed Mr G’s EHC Plan in line with the statutory timescales. A few days later the Council told Mr X it intended to amend Mr G’s Plan to reflect changes in his special educational needs and/or the provision made to meet those needs.
27. Mr X contacted Officer 1 in November and stated that Mr G’s Plan should not be amended. Officer 1 responded and explained that the Plan needed to be amended as Mr G wanted to attend college B. Officer 1 said they would be in contact again as soon as possible.
28. Mrs X emailed Officer 2 on 27 November 2023 and said she was struggling to arrange social care support for Mr G over the Christmas and new year period. She asked if Mr G could buy a games console with the direct payments as an alternative to care services. Mrs X emailed again on 4 December and said she needed to know as soon as possible. Officer 2 told Mrs X the Council would respond to the request within the 20 working days timeframe.
29. A different officer (Officer 3 – an ASC officer) contacted Mrs X the same day and said Mr G could not buy a games console using direct payments. Mr X responded and asked the officer to reconsider the decision and he provided further explanation of the request. Officer 3 told Mr X they would get advice from their manager and respond to him.
30. Mr X complained to the Council in mid-December. He said the Council was delaying amending Mr G’s EHC Plan and it was preventing transition planning and arrangements for his post 19 education. He also complained the Council was obstructing use of Mr G’s direct payments on non-service items.
31. The Council issued an amended draft EHC Plan for Mr G in mid-December 2023. Mr X disagreed with the content of the draft Plan and invited Officer 1 to a meeting at school A to discuss the draft.
32. The following day the Council contacted Mr X and said it agreed Mr G’s direct payments could be used to purchase a games console and it would update Mr G’s support plan accordingly.
33. At the end of December Officer 1 left the Council.
34. Mr X raised another complaint in mid-January. He complained that Officer 1 did not attend the meeting at school A to discuss the draft Plan. He also said that although the Council had agreed the games console, it was too late as the console Mr G wanted was not available.
35. Mr X complained to us in January 2024. We asked the Council to consider the complaint.
36. The Council states it assigned a new case officer (Officer 4 – a SEN officer) on the 24 January 2024.
37. The Council issued a response to Mr X’s complaint at the beginning of February 2024. The Council:
• apologised it had not updated Mr and Mrs X when Officer 1 left the Council and explained they did not attend the meetings as they no longer worked for the Council;
• apologised it had not finalised Mr G’s EHC Plan review in line with the guidance;
• referred to a social care matter that did not relate to Mr G, but to their sibling B, and included reference to its approval to purchase a games console while referring to B.
38. Mr X told the Council its complaint response was unclear, did not answer all the points he raised and was unclear about who it was referring to.
39. At the end of February 2024 the Council issued a further draft amended Plan for Mr X and Mr G’s comments.
40. The Council issued a second version of its complaint response. It apologised for mixing up Mr G and his sibling B. It provided substantially the same response and continued to mix up Mr G’s complaint with a matter related to B.
41. At the beginning of March the Council issued a further draft amended EHC Plan.
42. The Council issued a third version of its complaint response and apologised for previous errors in its complaint responses and the frustration this caused. It provided the same response and clarified it approved direct payments for the purchase of a games console for Mr G. It continued to refer to matters related to Mr G’s sibling, but did not confuse the two.
43. Mr X asked the Council to finalise the EHC plan at the end of March and provide the right of appeal to the SEND Tribunal. The Council issued a further draft Plan.
44. Officer 4 asked Mr X’s permission to consult college B with the amended draft Plan in April 2024.
45. A new case worker (Officer 5 – a SEN officer) contacted Mr X in June and said they could not see the most up to date draft that Officer 4 had referred to in the previous communication and asks Mr X to send it back to them and they would then consult college B.
46. In July Mr G stopped attending school A because it was the end of the academic year and he had turned 19. The Council had still not issued a final amended Plan.

My findings

Education, Health and Care Plan

47. An annual review meeting was held for Mr G’s EHC Plan in September 2023. In line with the statutory guidance the Council should have issued its decision to maintain, cease or amend Mr G’s EHC plan within four weeks. The law states the Council should have gone on to issue the amended EHC plan within a further eight weeks and so by 14 December 2023. The Council has spent time issuing repeated draft versions of the EHC Plan which has caused delay and the Council took no action at all between April and June 2024. The Council has still not issued a final amended EHC plan for Mr G at the date of this decision which is a delay of over 32 weeks and is fault.
48. Mr G did not yet have a placement to attend in September 2024 at the date of this decision. Because the Council had not issued the amended EHC Plan, Mr G was caused uncertainty. In addition it delayed proper transition planning to Mr G’s next placement in good time, which was a further injustice. Although I cannot say even on a balance of probabilities what transition arrangement Mr G would have received had the Council acted without fault, Mr G has been caused further uncertainty by the fault which is an injustice to him.
49. The delay in issuing the Plan also delayed Mr G and Mr X’s appeal rights to the SEND Tribunal. This caused Mr X frustration, particularly as he requested the Council issue the Plan and provide the appeal rights in March 2024.

Direct payments

50. Mr X complained the Council delayed agreeing a different use for Mr G’s direct payments and only agreed after he had complained. Mrs X requested a change in line with the direct payment agreement. The Council considered the request and declined it within five working days. When Mr X asked it to reconsider the decision and offered further explanation the Council reconsidered the matter and agreed the payment. The payment had been agreed within 18 working days of Mrs X’s request which was within the 20 working days set by the Council’s communication plan. There was no fault in the Council’s action.

Complaint handling

51. Officer 1 was the point of contact named in Mr and Mrs X’s communication plan. The Council should have informed Mr and Mrs X Officer 1 was leaving and would be replaced by Officer 4. It did not do so in advance which was fault. It meant that no relevant officer attended a meeting about Mr G’s EHC Plan at school A in January 2024 which caused Mr X frustration. The Council told Mr X of Officer 4 being in place within 16 working days. The Council had already apologised and I made a further recommendation below.
52. Mr X first complained about the delay of Mr G’s EHC Plan review at the end of October 2023. The Council did not provide a substantive response until February 2024, after we asked it to consider the matter. That is beyond the 20 working days in the Council’s policy and is fault and caused Mr X frustration.
53. When the Council did respond it did not provide a response to Mr X’s complaint that the direct payment agreement was too late. It also referred to matters related to Mr G’s sibling who is also an adult and mixed-up Mr G and B. The Council issued two further complaint responses, however even in its final version it continued to include information about B. The failure to provide a clear and accurate complaint response on all matters was fault and caused Mr X frustration and uncertainty about whether the Council properly considered his complaint.

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Agreed action

54. Within one month of this decision the Council will:
1. Write to Mr G and apologise for the uncertainty caused to him by the Council’s faults and pay him a symbolic amount of £500 to recognise the same;
2. Write to Mr X and apologise for the frustration and uncertainty caused to him by the Council’s faults and pay him a symbolic amount of £400 to recognise the same;
3. Issue Mr G’s final amended EHC Plan and provide Mr G and Mr X’s appeal rights to the SEND Tribunal
55. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
56. Within three months of this decision the Council will remind relevant staff:

• of the statutory timescales for issuing a draft and amended final Plan following an annual review meeting;
• that complaints about two adults should not be responded to in one letter, even where they have the same representative; and
• to respond to complaints within the timescales set in its complaint policy.

57. The Council will provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice and improve services.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman